You are here: / / CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE ...

CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT).

The Second Department determined a California statute was a statute of limitations, not a statute of repose. A statute of limitations, unlike a statute of repose, is considered procedural in New York. Therefore the California statute would not be applied in a New York action. Because the California statute of limitations would not apply to the underlying New York action, the defendant-attorneys’ failure to raise the statute of limitations as a defense did not constitute malpractice:

“In New York, Statutes of Limitation are generally considered procedural because they are [v]iewed as pertaining to the remedy rather than the right” … . A statute of limitations “does not begin to run until a cause of action accrues” … . In contrast, “a statute of repose begins to run when the specified event or events takes place, regardless of whether a potential claim has accrued or, indeed, whether any injury has occurred” … . “The repose period serves as an absolute barrier that prevents a plaintiff’s right of action” … . “In other words, the period of repose has the effect of preventing what might otherwise have been a cause of action from ever arising” … . Statutes of repose “exhibit a substantive texture, nature and consequence that distinguishes them from ordinary limitation provisions” … . … [I]f a statute creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause” … . In contrast, when a cause of action “was cognizable at common law or by other statute law, a statutory time limit is commonly taken as one of limitations and must be asserted by way of defense” … . …

… California Code of Civil Procedure § 366.3 is a statute of limitations, not a statute of repose. Unlike a statute of repose, section 366.3 begins to run at the time the cause of action to recover on the promise to make a testamentary disposition accrues, namely, the date of the promisor’s death … . Nestor v Putney Twombly Hall & Hirson, LLP, 2017 NY Slip Op 06284, Second Dept 8-23-17

 

CIVIL PROCEDURE (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/CHOICE OF LAW ( CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/STATUTE OF LIMITATIONS  (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))/STATUTE OF REPOSE (CHOICE OF LAW, CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT))

You might also like
Delay In Coming Forward With Defendant’s Alibi Was a Proper Subject of Cross-Examination After Foundational Requirements Were Met
PROPERTY OWNER PROPERLY FOUND NEGLIGENT IN FAILING TO MOP UP TRACKED IN SNOW AND WATER IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF’S INABILITY TO IDENTIFY THE WET SUBSTANCE ON THE STEP WHERE SHE ALLEGEDLY FELL WAS NOT AN INABILITY TO IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT).
Not Enough Evidence Before Family Court to Make Custody Determination
PROOF OF GENERAL INSPECTION PRACTICES DOES NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE-ON-SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
RECORD DOES NOT DEMONSTRATE DEFENSE COUNSEL WAS MADE AWARE OF A JUROR’S COMPLAINTS ABOUT THE DELIBERATIONS AND THE CONTENTS OF A NOTE FROM THE JURY; THE FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED; DNA TESTING OF GUM DISCARDED BY THE DEFENDANT WHILE IN CUSTODY WAS PROPER (SECOND DEPT).
BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK.
THE RULES OF THE ROAD APPLY TO BICYCLISTS; HERE THE BICYCLIST DARTED OUT INTO TRAFFIC FROM IN FRONT OF A PARKED VAN; THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPARTMENT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

WHEN A PRELIMINARY INJUNCTION IS GRANTED THE PLAINTIFF MUST GIVE AN UNDERTAKING... CERTIFICATE OF READINESS WHICH INDICATED FURTHER DISCOVERY WAS NECESSARY RENDERED...